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Expert Matters: Advocacy undermines an expert

Nelvin Tam, a Senior Executive Analyst in our Sydney office, reviews a recent Federal Court case that found changes made to draft reports indicated a lack of independence, and resulted in no weight being placed on the expert’s report.

July 2016

“He was prepared to mould his views, or acquiesce in the moulding of his views, into a form which would, to the best extent possible, assist the case of the party that had retained him”

Introduction

Expert witnesses have an overriding duty to assist the Court on matters relevant to the expert’s area of expertise1. They are not acting as advocates. Where independence is breached, the Court may place little or no reliance on an expert’s report.

Nelvin Tam, a Senior Executive Analyst in our Sydney office, reviews a recent Federal Court case that found changes made to draft reports indicated a lack of independence, and resulted in no weight being placed on the expert’s report.

Background

Snowdale Holdings Pty Ltd produces chicken eggs in Western Australia. Some of these eggs are advertised and labelled as ‘free-range eggs’.

ACCC alleged that that it was misleading or deceptive conduct to represent the eggs as ‘free-range eggs’ because the conditions at two Snowdale farms did not allow hens to leave sheds to access open ranges.

The expert and his evidence

Mr G was Snowdale’s expert witness. He was an operations-livestock manager and had over 20 years experience in managing broiler breeder farms. He had served on consultative committees for quality assurance programs and visited egg farms all over Western Australia.

Mr G’s evidence related to his observations of the conditions on multiple visits to the Snowdale farms, including factors that could have affected the chicken’s behaviours. However, the focus of the legal debate was not the content of Mr G’s report, but rather the process between the solicitors receiving the first draft of his report and his final report being issued.

Mr G was required, during cross-examination, to produce drafts of his report. The first two drafts, sent to Snowdale’s solicitors for discussion on 11 and 12 February 2015, were three and a half pages long. A draft document, described as Mr G’s report, was generated by Snowdale’s solicitors and sent to Mr G on 13 February 2015. That document totalled almost nine pages. There were a further seven iterations of the document, based on the draft report produced by Snowdale’s solicitors, until the final report was filed.

ACCC contended that this progression of the draft reports showed that Mr G was amendable to adopting changes whose primary purpose was to assist Snowdale’s case; and that this undermined his independence. ACCC listed examples, including:

An amendment to the percentages of chickens outside of a barn (from ‘40% and 80%’ to ‘70% to 90%’).

Changes in the wording to water down his opinion about the opening of pop holes of the shed.

Omission of references to gaps between the centre nest box modules which had been in previous drafts.

Omission of paragraphs which answered the question about flock sizes in a different way.

Mr G was unable, in cross-examination, to provide persuasive explanations for the amendments to his draft reports. In some instances, he was not able to say why changes had been made, or who had made them.

Further, the trial judge drew attention to:

An email sent by Mr G to his solicitors prior to the issue of the final report stating “This is the report… is there anything we can change before [the courier] arrives”.

Instances where Mr G’s evidence under cross-examination was contrary to the factual evidence. For example, he repeatedly confirmed that he had seen chickens outside the barns on each of his visits, although he had visited at times before chickens were allowed outside, and at times after ‘free-range’ operations had ceased.

He also found that:

“Mr [G] did not act as an independent expert… Mr [G] did not approach his role as an expert witness from the position of a person who owed a paramount duty to the Court to express an independent opinion. Rather, I find that Mr [G] was prepared to participate in a cooperative venture with Snowdale and its solicitors whereby he was prepared to mould his views, or acquiesce in the moulding of his views, into a form which would, to the best extent possible, assist the case of the party that had retained him.”

Significance

This case highlights two significant matters for lawyers in approaching expert evidence:

The expert’s role is to help the Court on matters that are within his or her expertise, and not to advocate for any party.

Draft expert reports are not provided to allow solicitors to make amendments to assist their client’s case. Rather, lawyers should use a draft expert report to verify factual accuracy and ensure that the report is admissible.

Draft expert reports are discoverable in some jurisdictions. If lawyers or experts have not done the right thing, those drafts may be used against them at trial.